RMA Bill brings Auckland Unitary Plan a step closer

​The Resource Management Reform Bill (Bill), now with the Local Government and Environment Select Committee, introduces changes to streamline the Auckland Unitary Plan process.

It also contains a number of other provisions of national application to speed consenting for medium-sized and infrastructure projects.

Submissions on the Bill are due by 28 February 2013.

This Brief Counsel looks at the Unitary Plan hearing process. We will do a separate commentary in the New Year on the rest of the Bill.

Part 4 of the Bill sets out how the one-off independent hearing process for the Auckland Unitary Plan will work. The provisions were well-telegraphed by the Government in advance and were discussed in an earlier Brief Counsel.

In addition to the features we discussed previously, the Bill, as currently drafted, provides further detail on how the system will work.

Pre-hearing meetings and mediation:the Hearings Panel (Panel) can arrange pre-hearing meetings to clarify issues or facilitate resolution of a matter. If a submitter fails to attend without reasonable excuse, the Panel may decline to consider that person’s submission. The Panel can also direct mediation or any other alternative dispute resolution process. As with Environment Court mediations, submitters will have the option to attend.

Hearing procedure: the Bill sets out a number of procedural matters, including a requirement for the Panel to keep a full record of the hearing sessions, and the power for the Panel to allow questioning or cross-examining of other parties or witnesses, and to direct that briefs of evidence are provided ahead of the hearing.

Auckland Plan: the Panel must have regard to the Auckland Plan (spatial plan). Currently, under the Resource Management Act 1991, the Auckland Plan has no special status.

Scope of Panel’s recommendations: the Panel can make recommendations on any matters related to the Unitary Plan and is not limited by the scope of submissions received.

Timeframes for recommendations/decisions: the Panel must make its recommendations to Auckland Council (Council) within 50 working days of the expiry of the three year timeframe from public notification (currently planned to be in September 2013), unless the Minister for the Environment extends the time period by up to one year. Following receipt of those recommendations, the Council then has 20 working days to make its decisions (unless the Minister grants an extension of up to 20 working days).

Rights of appeal: if the Council decides to reject the Hearing Panel’s recommendation, it must propose an alternative. The Council’s alternative is limited to the scope of submissions made. Submitters may appeal this decision to the Environment Court on merits, provided the appeal relates to a matter raised in their submission. If the Council accepts the Hearing Panel’s recommendation, appeals are available to submitters only to the High Court and only on points of law.

Amendments or variations to Unitary Plan: the Bill restricts any amendments or variations to the Unitary Plan before it is operative. Exceptions to this are where amendments are in response to a Hearing Panel's recommendation, and under clause 4(10) of Schedule 1 to the RMA (which relates to the withdrawal of a notice of requirement for a designation).

Chapman Tripp comments

The proposed breadth of the Panel’s power to make recommendations on any matter relating to the Unitary Plan identified during the hearing is somewhat surprising.

It represents a departure from the existing plan making process in the First Schedule of the RMA 1991, where a local authority’s decision-making power is limited to matters raised in submissions.

And it creates a sharp contrast with the constraints placed on the Council and submitters, both of which are limited in different ways to the scope of submissions already made.

The requirement for the Panel to have regard to the Auckland Plan is also a significant proposal. When the Auckland Plan was first being developed, we highlighted that its legal status could be elevated in the RMA context at a later stage (despite it having been adopted under the Local Government Act).

Caselaw on the meaning of “having regard to” in the resource management context has held that this phrase means that genuine attention and thought must be given to the matters set out and those matters can be given such weight as is considered appropriate. Clearly, more will be required than simply giving the Auckland Plan cursory attention.

Next steps

Submissions on the Bill are due on 28 February 2013. If you are interested in making a submission regarding the proposed Unitary Plan process, please contact one of the lawyers featured.

At this stage, the draft Unitary Plan is tentatively scheduled to be released by Auckland Council for informal comments on 15 March 2013. We will keep you updated on further developments.